Kenya Tort Law: Remedies to a tort

Under Kenya laws the main remedy against tortious loss is compensation in 'damages' or money. In a limited range of cases, tort law will tolerate self-help, such as reasonable force to expel a trespasser. This is a defense against the tort of battery. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction, such as in the English case Miller v Jackson (1977). This means a command, for something other than money by the court, such as restraining the continuance or threat of harm. Usually injunctions under Kenya law will not impose positive obligations on tortfeasors, but some jurisdictions can make an order for specific performance to ensure that the defendant carries out their legal obligations, especially in relation to nuisance matters.

DAMAGES

Under Kenya laws,the fundamental principle applied to the assessment of an award of damages is that the claimant should be fully compensated for his loss. He is entitled to be restored to the position that he would have been in, had the tort not been committed, insofar as this can be done by the payment of money (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39).

TYPES OF DAMAGES

Nominal and contemptuous
Nominal damages under Kenya law will be awarded where the claimant proves that the defendant has committed a tort but the claimant has suffered no loss.
Contemptuous damages consist of the award of a derisory sum, usually the smallest coin of the realm of. They are awarded when the court considers that the claimant's action, although technically successful, was without merit and should not have been brought. The claimant may then be at risk on costs, which are normally awarded to the successful party.
General and special
General damage under Kenya law is the damage that is presumed to flow from torts which are actionable per se, and so need not be specifically pleaded (e.g., loss of reputation in a libel action). Special damage refers to the damage that the claimant must plead and prove as part of his cause of action in torts where damage is the gist of the action (e.g., negligence, nuisance, slander).
There is a second and much more commonly used meaning of the distinction between general damages and special damages. In practice, losses that are capable of being calculated with reasonable accuracy are pleaded as 'special damages'. Inexact or unliquidated losses (although they are not presumed and therefore must be pleaded) are compensated by an award of 'general damages'. For example, in a personal injuries